Question:
Ken,
My question is about covert CCTV installations in Michigan. The
situation is this...A client is going through a divorce and wishes to have
covert CCTV cameras installed in his residence. He wishes to have them in
both common areas and in bedrooms. He is supposedly the only party on the
mortgage and has the intent to "catch" his wife giving alcohol and drugs to
minors.
We have always done common areas, but not bedrooms. If the intent is for
general security and/or child abuse would it matter?? Can I have the owner
sign a hold harmless agreement?? Is there another agreement that will work
for this application??
Thank you for any help sir.
Bill
Answer:
Dear Ken:
In reference to the client's question, there is a Michigan statute
regarding
video recordings in areas such as bedrooms.
Generally, it is prohibited to install, place, or use video equipment
in
any private place, without the consent of the person entitled to privacy in
that place. This would obviously apply to a women in her bedroom.
There is an exception that allows for security monitoring in a
residence,
if conducted by, or at the direction of the owner or principal occupant of
the residence, unless it is done for a lewd purpose.
In short, if the subscriber requesting the CCTV is the owner of the
home,
and the purpose is for security monitoring, then it is allowed.
I am pasting a copy of the statute as well as case notes for your
review.
MCLS § 750.539d (2005)
§ 750.539d. Installation, placement, or use of device for observing,
recording, transmitting, photographing or eavesdropping in private place.
Sec. 539d. (1) Except as otherwise provided in this section, a person
shall not do either of the following:
(a) Install, place, or use in any private place, without the consent of
the person or persons entitled to privacy in that place , any device for
observing, recording, transmitting, photographing, or eavesdropping upon
the sounds or events in that place .
(b) Distribute, disseminate, or transmit for access by any other person
a
recording, photograph, or visual image the person knows or has reason to
know was obtained in violation of this section.
(2) This section does not prohibit security monitoring in a residence if
conducted by or at the direction of the owner or principal occupant of that
residence unless conducted for a lewd or lascivious purpose.
(3) A person who violates or attempts to violate this section is guilty
of a crime as follows:
(a) For a violation or attempted violation of subsection (1)(a):
(i) Except as provided in subparagraph (ii), the person is guilty of
a
felony punishable by imprisonment for not more than 2 years or a fine of
not
more than $2,000.00, or both.
(ii) If the person was previously convicted of violating or
attempting
to violate this section, the person is guilty of a felony punishable by
imprisonment for not more than 5 years or a fine of not more than
$5,000.00,
or both.
(b) For a violation or attempted violation of subsection (1)(b), the
person is guilty of a felony punishable by imprisonment for not more than 5
years or a fine of not more than $5,000.00, or both.
(4) This section does not prohibit a person from being charged with,
convicted of, or punished for any other violation of law committed by that
person while violating or attempting to violate subsection (1)(a) or (b).
HISTORY: Act 328, 1931, p 624; eff September 18, 1931.
Pub Acts 1931, No. 328, Ch. LXXXII, § 539d, as added by Pub Acts 1966, No.
319, eff March 10, 1967.
Amended by Pub Acts 2004, No. 156, imd eff June 16, 2004, by enacting § 1
eff September 1, 2004 (see 2004 note below).
CASE NOTES
MCLS § 750.539d prohibited positioning a video camera and partially
concealing it to record consensual sex in defendant boyfriend's bedroom;
the
bedroom was a "private place" under MCLS § 750.539a(1) and the boyfriend
could not unilaterally nullify plaintiff girlfriends' expectation of
privacy; reasonable people engaged in sexual relations in a bedroom of a
private home expected to be free from "surveillance," MCLS § 750.539a(3),
i.e., from being secretly spied upon and having their privacy invaded.
Lewis
v LeGrow (2003) 258 Mich App 175, 670 NW2d 675.
Avrohom Gefen, Esq.
KIRSCHENBAUM & KIRSCHENBAUM, P.C.